• Unsecured Loans from NBFCs - Insolvency an option?

Our partnership firm has availed unsecured business loans from NBFCs and Banks. We have incurred huge losses and are in no position to pay these entities. All our properties (firms' and personal) have been mortgaged with the bank with which we have our working capital facility.

We need advice regarding protection from Section 138 when these NBFCs and Banks opt for cashing in on the security cheques that they have been provided with. Can declaring insolvency for all the partners and the firm be an option? After we file for insolvency, are cases filed under section 138 (either initiated before or after filing of insolvency) maintainable?

Thanks.
Asked 4 years ago in Criminal Law
Religion: Hindu

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10 Answers

Hello,

Yes those cases will be maintainable even if insolvency petition is filed. Refer to the judgement of NCLT avalaible at the following link:

http://www.livelaw.in/proceedings-section-138-ni-act-nothing-insolvency-application-code-nclt/

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

you would continue to be liable even after filing for insolvency for cheques issued and dishonoured on presentation

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

Until declaration of Insolvency you need to take the stay for the other cases including Section 138.

By doing this all your case will be stayed otherwise the other cases will continue.

Rajashekar
Advocate, Bangalore
584 Answers
4 Consultations

4.8 on 5.0

Yes the cases under 138 will be maintainable even after the partnership firm and partners are adjudged as the insolvents.

the issue is discussed in detail in below mentioned judgement kindly go through:

https://indiankanoon.org/doc/245313/

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

In one case decided by the madras HC in 1999, states that the mere presentation or pendency of the insolvency petition will not disentitle the complainant to seek a remedy before the criminal for the offence said to have been committed by the accused. It further held that even declaration by the insolvency court that the accused are insolvents shall not disentitle the complainant to seek a remedy for an offence under S.138.

In one case decided by the madras HC in revision proceedings has held that whether a person unable to pay his debts and subsequently prosecuted for failure to discharge his debts in whole or in part shall be deserved to be considered in an appropriate case and dismissed the petition.

n another case decided by the delhi HC in 2006, summons issued for an offence under S.138 after the winding up of the company is bad in law.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

1. Cheques issued as "Security Deposit" does not come under the purview of 138 Negotiable Instruments Act.

2. Negotiable Instruments Act, proceedings are Criminal Proceedings and would offer nothing as far Insolvency is related.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

Dear Client,

How can it be unsecured loan, when ur properties are mortgagee with the bank ?

In which act ur firm is registered,

Partnership Act or Limited Liability Partnership Act ?

How will the partnership will declared insolvent ?

Partners becomes insolvent not firm, and on that note - firm dissolves compulsory.

BUT THE INSOLVENCY AND BANKRUPTCY CODE, 2016 -

Apply for bankruptcy - read provision below -

An application for bankruptcy of a debtor may be made, by a creditor individually or jointly with other creditors or by a debtor.

AND

In the case of partners, the partnership property shall be applicable in the first instance in payment of the partnership debts and the separate property of each partner shall be applicable in the first instance in payment of his separate debts.

FOR interim relief only Declaration of Moratorium has a remedy to hold any legal prosecution under any act.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Security cheque can never be used to withdraw of the amount or bounce it as it was never meant to make payment. Yes it will

Subhendu Ghosh
Advocate, Barrackpore
234 Answers

4.0 on 5.0

You must be aware that the cse filed under section 138 NI act is basically criminal in nature, hence there is no question of recovery of money like a civil case of the dishonored cheque amount.

Moreover insolvency case is different to that of the 138 NI act case, this has no relevance to that nor there can be any impact against each other.

Even if ther is an insolvency case going on, the case filed under section 138 NI act will run parallely and it is maintainable.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

It depends on case to case basis as 138 cases there is penal provision so after insolvency penal provision can't be avoided. Case under 138 NI Act maintainable.

Prashant Nayak
Advocate, Mumbai
27261 Answers
88 Consultations

4.4 on 5.0

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